30 March 2011

Intensive Supervision Adult Probation in Colorado

A Denver Post story last Sunday noted that ten adult men on probation in Colorado have been charged with murder or attempted murder in the last nine months. Five of them were in adult intensive supervision probation, one was in sex offender intensive supervision probation, three were on ordinary adult probation (one for burglary, one for gang related burglary, and one for domestic violence and in each case producing an attempted murder rather than a successful one). Many of them were in violation of prrobation conditions but faced no consequences for their violations. The probation department is at 90% of authorized strength.

because they had been recognized as relatively high risk (and at least one of the ten who was not on intensive probation was guilty of attempted murder, but was not successful in completing his crime).

People on probation commit about 3% of all felonies in the State of Colorado and make up about 1.7% of the state's population including children. Thus, overall, probationers (who are much more likely to be adults and much more likely to be non-elderly males) aren't particularly high risk as a whole compared to demographically similar non-probationers, particularly when the offense by high risk probationers are removed from the total. But, a subset of probationers, adult men in intensive supervision probation who make up about 3% of the total probation caseload, do appear to pose a considerably high risk to the general public.

Offenders who commit felonies while on probation are subject to sentences of at least the midpoint of the presumption range for the offense, and up to twice as much as the presumptive maximum for that offense, Section 18-1.3-401(8)(a)(III), Colorado Revised Statutes, in addition to having their probation revoked and facing a sentence of incarceration on the original crime. So, these offenses are committed despite an enhanced deterrent incentive not to commit them relative to an ordinary individual.

All of the murders and many of the attempted murders were committed by adults in the intensive adult and intensive sex offender program (6 out of 101 felonies compared to 4 out of the 570 felonies committed by ordinary adult probationers), suggesting that in addition to having a much higher felony termination rate than other probationers, that these offenders also commit, on average, more serious felonies than other probationers who have their probation revoked for felonies.

Policy Implications

This may mean that these high risk individuals simply need to receive even more intensive supervision than they already receive, or it may mean that they would be better incarcerated. Given the very high likelihood that an incarcerated felon will commit a new felony after being released, it isn't obvious that the public is safer with incarceration than it is with probation in intensive supervision cases. But, it may very well be that the public would be better protected by incarceration in this subset of cases.

More generally, if the reason to prefer probation to incarceration is that it reduces the risk that a convicted felon is less likely to commit a felony that harms a member of the general public, and to reduce the severity of the felonies that are committed by such people, it may make sense to put more of the high risk men who receive intensive supervision when on probation in prison, and to allow more low risk individuals to receive probation sentences.

In particular, many women, white collar offenders, and vice offenders in our prisons who aren't part of criminal gangs or organized crime enterprises may pose a lower risk to the general public than some of the more serious male "blue collar crime" offenders who receive probation in the current system. Even if the lower risk offenders do commit new felonies, these offenders are unlikely to commit the violent felonies that the public is most concerned about preventing.

It is also worth examining whether probation is too often imposed for minor offenses where the benefits resulting from the supervision element of the sentence is slight, because probation officers are spread so thin for low risk offenders. For example, it isn't obvious that the system has sufficient resources to adequately sanction the large number of offenders who abscond or commit technical violations in a consistent manner, or that even the minor probationers who do abscond or commit technical violations really do present a serious threat.

Perhaps the state needs an option in many cases that produce probation sentences today of imposing a significant fine and a sentence of "unsupervised probation" as all or part of the probation period for minor offenders, which is revoked only for new felonies or misdemeanors or non-payment of fines, which qualifies the individual for an enhanced sentence on the new offense and a sentence of incarceration on the old offense, if a new offense is committed within a certain time period, in addition to a fine, while not actually having the relatively elaborate conditions of probation with many opportunities for technical violations and absconding through mere flakiness, and the supervision costs, that are present in the typical probatioon case.

How common is probation?

At the end of the 2010 fiscal year, there were 3,423 people in an intensive supervision probation program in Colorado's state courts: 1,408 in the program for adult men, 1,301 in the program for sex offenders, 262 in a program for women, and 452 in a program for juveniles.

Other kinds of probation are much more common. There were 41,107 adults on regular probation, 5,946 on regular juvenile probation, 11,448 on state monitored probation for drunk driving offenses, 9,067 on private probation for non-drunk driving offenses, and 14,126 on private probation for drunk driving offenses.

In all, there were 85,142 people on probation in Colorado on June 30, 2010. Probation includes community corrections.

Probation is a common sanction following a criminal conviction, indeed, it is the modal punishment for many offenses. There were 10,460 new felony probation sentences, 14,851 new misdemeanor probation sentences, 228 new petty misdemeanor probation sentences, 103 new traffic probation sentences, and 694 other new probation sentences (ordinance violations or lack of coding information) in the 2010 fiscal year. In all 26,336 new probation sentences were imposed in the 2010 fiscal year. Of completed probation sentences, 38% were for a year or less, 36% were for one to two years, 15% were for two to three years, and 11% were for more than three years.

Among state monitored drunk driving probation cases, 73% complete successfully, 16% have their probation revoked (1,411) (41 which is 4% for new felonies, 136 which is 10% for new misdemeanors, and 87% for technical violations), and 11% abscond.

For regular juvenile probation, 73% successfully complete their sentences, 22% have probation revoked, and 5% abscond. Of the 989 juvenile revocations, 135 (14%) are for a new felony, 183 (18%) are for a new misdemeanor, and the remaining 68% are for technical violations.

In the adult intensive supervision program, 66% are successful terminations, 26% (317) are revoked, and 9% (108) abscond. Of the 317 revocations, 79 (25%) are for new felonies, 51 (16%) are for new misdemeanors, and 59% are for technical violations.

In the female intensive supervision program, 69% of cases are successful, 22% (32) are revoked (10 which is 31% for new felonies, 3 which is 9% for new misdemeanors and 59% for technical violations), and 8% abscond.

For juveniles under intensive supervision, 46% are successful, 49% (232) have probation revoked, and 5% abscond. 44 juvenile intensive supervision revocations (19%) are for new felonies, 48 (21%) are for new misdemeanors and 60% are for technical violations.

After probation terms are completed there is considerable recidivism, although not nearly as much as that for offenders who complete prison terms.

Miscellaneous Background

When you are convicted of a crime in Colorado, a judge can fine you, a judge can sentence you to a period of incarceration, or a judge can put you on probation subject to a wide variety of conditions (there are a few other options as well, like community corrections and deferred judgments).

There are three main classes of people who are out in the community while involved in the criminal justice process. People on bond awaiting conviction, people on probation, and people on parole. The first two are supervised by the judicial branch, the last is supervised by the executive branch's parole system. (Incarceration prior to trial or after conviction for a misdemeanor is handled by the executive branch of county government, while incarceration after conviction for a felony is handled by the executive branch of state government together with parole). The probation department also does pre-sentence investigation of criminal defendants.